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‘Scandalous And Immoral’ Or First Amendment Speech? Justices Mull ‘FUCT’ Trademark

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Kevin Daley Supreme Court correspondent

The Supreme Court spent Monday morning carefully avoiding an obscene four-letter word beginning with “f.”

The justices were considering a challenge to a provision of the 1946 Lanham Act which prohibits the registration of “scandalous and immoral” trademarks. American designer Erik Brunetti, who was denied a trademark for his “Fuct” fashion line, says the law violates the First Amendment.

How the justices would refer to the obscene subject matter at hand was an open question before Monday’s argument. The Supreme Court is a staid, well-mannered institution, while legal briefs filed in the case were necessarily replete with vulgarity. Ultimately the high court avoided any unseemly digressions, with deputy Solicitor General Malcolm Stewart referring to the Fuct brand as “the equivalent of the profane past participle of the paradigmatic profane word in our culture.”

Justice Neil Gorsuch continued in that vein when asking Stewart to explain the government’s seemingly erratic practice where scandalous trademarks are concerned. Some would-be marks which are phonetically similar to profanity are denied, Gorsuch noted, while other similar applications are approved.

“I don’t want to go through the examples,” Gorsuch said. “I really don’t want to do that.”

The Supreme Court struck down a neighboring provision of the Lanham Act in 2o17. That requirement forbade the registration of “disparaging” trademarks. As such, it seemed Monday’s case would be an easy extension of the 2017 decision, but the argument pointed toward a complicated outcome.

The justices seemed particularly reluctant to permit trademarking of racial slurs and a few especially profane words. Some words are so shocking and offensive, Justice Stephen Breyer said, that they elicit unique physiological responses.

“I’m also worried about the racial slur we all know about suddenly, in certain places in the United States, appearing as a product name, appearing on every bus where it’s advertised, appearing on news stands…where children and others see it,” Breyer told John Sommer, an attorney for Brunetti.

Later in the argument, Stewart indicated that the government is currently holding several applications to trademark slurs in abeyance. (RELATED: Early Morning Opinion Shows Supreme Court Deeply Divided On The Death Penalty)

Elsewhere Breyer and Justice Brett Kavanaugh wondered if profanity was akin to fighting words, or language which incites “an immediate breach of the peace.” Such language does not enjoy constitutional protection.

The Court also seemed skeptical of the notion that offensive language is itself a viewpoint. Brunetti said the Fuct brand name was itself a viewpoint, since it suggests a heterodox, nonconforming attitude.

Erik Brunetti (L) attends Erik Brunetti's FUCT Book Release Party at Chateau Marmont on September 18, 2013 in Los Angeles, California. (Charley Gallay/Getty Images for RVCA)

Erik Brunetti (L) attends Erik Brunetti’s FUCT Book Release Party at Chateau Marmont on September 18, 2013 in Los Angeles, California. (Charley Gallay/Getty Images for RVCA)

Still, a majority of justices seemed to believe that the law swept too broadly. Justice Sonia Sotomayor asked Stewart why the government used a subjective standard, “scandalous and immoral,” instead of clearly defined categories like vulgarity.

“Why are you using a subjective standard?” Sotomayor asked. “Why not just something like obscene, vulgar, even profane? But, once you get to shockingly offensive, you get to viewpoint.”

Stewart indicated that the PTO would be more consistent in its use of the anti-scandal rule, but Justice Elena Kagan seemed wary of taking the government’s word on this subject.

“You’re essentially saying we should uphold the statute on the basis of various commitments that the government is now making to apply this statute to only a small subset of the things that it could apply to…and that’s a strange thing for us to do,” Kagan said.

A decision in the case, Iancu v. Brunetti, is expected by late June.

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